Healthier Choices Mgmt Corp (HCMC)

[Lucy K]

Yes. Great question. That’s my point. The Court didn’t have to allow a motion to amend if it would truly be futile. Leads me to think that the Court misused the term futility which if that is true is just sloppy. But who knows? In any event, the characterization of a potential amendment as futile along with leave to amend makes no sense. But since the only thing that apparently lead to this futility was Exhibit J, we need to attack Exhibit J. PM will likely bring it up in their opposition.

A court must allow amendment unless the amendment would be futile. This leads me to conclude that the Court was saying, “well, I think it would be futile, but you tell me why it wouldn’t be and I’ll listen and if it’s not then I will let the case move forward.”

That’s what I am reading here. Could be wrong. But I am not sure how to reconcile any other way.